REGISTRY POLICY FOR DETERMINING THE EXTENT
TO WHICH AN ACCUSED IS ABLE TO REMUNERATE COUNSEL

1
Entry into force

This policy applies from 4 May 2004

2
General provisions

Without prejudice to discretion afforded by
Article 8 of the Directive on Assignment of Defence Counsel
("Directive"), the Registry uses the following policy
to determine the extent to which an applicant for legal aid
is able to remunerate counsel. When an applicant for legal aid
submits a declaration of means pursuant to Article 7(B) of the
Directive, the Registry assesses the income and assets of the
applicant, his spouse and the persons with whom he habitually
resides. In doing so the Registry may rely on the applicant’s
declaration of means or undertake an inquiry into the applicant’s
means pursuant to Article 10 of the Directive. From the established
pool of income and assets, the Registry calculates the applicant’s
disposable means, according to Sections 5-8 of this policy.
From the disposable means, the Registry deducts the estimated
living expenses of the applicant’s family and dependents during
the estimated period in which the applicant will require representation
before the International Tribunal. The amount remaining is the
contribution to be made by the applicant to his defence.

3
Legislative Authority

The legislative authority for this policy is
enshrined in Articles 8 and 10 of the Directive.

4
Definitions

Under this policy, the following terms shall
mean:

Accused: a person against whom one or more
counts in his indictment have been confirmed in accordance with
Rule 47 of the Rules of Procedure and Evidence;

Applicant: an accused who has applied for
legal aid before the International Tribunal;

Child: a person under 18 years of age who
habitually resides in the principal family home;

Contribution: the extent to which an applicant
is able to remunerate counsel. That is, the amount the applicant
is expected to contribute to his defence;

Dependent: a person who derives his or her
main financial support from the applicant, his spouse or persons
with whom he habitually resides but who does not habitually
reside in the principal family home;

Disposable means: income and assets of
the applicant, his spouse and the persons with whom he habitually
resides that in the opinion of the Registry exceed the reasonable
needs of the applicant, his spouse, his dependents and the persons
with whom he habitually resides. The Registry’s calculation
of the disposable means is based on Sections 5-8 of this policy;

Estimated living expenses:

the living costs likely to be incurred
by the applicant, his spouse, his dependents and the persons
with whom he habitually resides during the period from when
the Registry issues its decision on the extent to which an applicant
is able to remunerate counsel until the conclusion of the estimated
period in which the applicant will require representation before
the International Tribunal, as calculated under Section 10 of
this policy;

Marital property: Property acquired by the
applicant and his spouse during their marital union, excluding
gifts made to one spouse specifically;

Persons with whom he habitually resides:

individuals who usually live with the applicant
or who would live with the applicant if he were not in custody,
and with whom the applicant is financially co-dependent; meaning,
that there is evidence of a pooling of financial resources such
that the applicant and the individual constitute one financial
unit;

Principal family home:

the principal place of residence of the applicant,
his spouse or persons with whom he habitually resides, owned
by the applicant, his spouse or persons with whom he habitually
resides; usually where the applicant would reside if he were
not in custody;

Principal family vehicle:

a vehicle habitually used as a primary form
of transport for the applicant, his spouse and persons with
whom he habitually resides, owned by the applicant, his spouse
or persons with whom he habitually resides;

Readily disposable asset:

an asset owned by the applicant, the applicant’s
spouse or the persons with whom he habitually resides that can
be sold, mortgaged or leased in order to raise money for the
applicant’s defence;

Spouse: an adult who is living with the
applicant as husband or wife, regardless of legal marital status;

Tools of the trade: standard tools or equipment
needed in a particular trade, profession or business.

5
Assets included in disposable means

In determining the applicant’s disposable means,
the Registry includes the following:

(a) the equity in the principal family home
that exceeds the reasonable needs of the applicant, his spouse
and the persons with whom he habitually resides. The principal
family home will exceed the reasonable needs of the applicant,
his spouse and the persons with whom he habitually resides,
if it is of greater value than the average family home in the
region in which it is located. The Registry determines the extent
to which the principal family home exceeds the reasonable needs
of the applicant, his spouse and the persons with whom he habitually
resides in accordance with the formula in Section 9;

(b) the equity in furnishings contained in
the principal family home and owned by the applicant, his spouse
or the persons with whom he habitually resides that exceed the
reasonable needs of the applicant, his spouse and the persons
with whom he habitually resides. The furnishings in the principal
family home will exceed the reasonable needs of the applicant,
his spouse and the persons with whom he habitually resides if
they are luxury items of extraordinary value, including but
not limited to art collections, antique collections;

(c) the equity in the principal family vehicle
or principal family vehicles that exceeds the reasonable needs
of the applicant, his spouse and persons with whom he habitually
resides. The principal family vehicle or principal family vehicles
will exceed the reasonable needs of the applicant, his spouse
and the persons with whom he habitually resides if their combined
value is greater than the value of one average automobile in
the state in which the applicant’s family resides. In determining
the value of the average automobile in the state in which the
applicant’s family resides, the Registry relies on official
documentation from the governments of the republics of the former
Yugoslavia;

(d) the equity in stocks, bonds or bank accounts
owned by the applicant, his spouse and persons with whom he
habitually resides, including but not limited to the applicant’s
TULP account at the United Nations Detention Unit, less allowances
paid by the United Nations into that account;

(e) the equity in any other assets, not listed
in Section 6, owned by the applicant, his spouse or the persons
with whom he habitually resides;

(f) any assets previously owned by the applicant,
his spouse and persons with whom he habitually resides, including
those listed in Section 5(a)-(e), where the applicant, his spouse
or the persons with whom he habitually resides assigned or transferred
any interest in those assets to another person for the purpose
of concealing those assets.

6
Assets excluded from disposable means

In determining the applicant’s disposable means,
the Registry excludes the following:

(a) the equity in the principal family home
to the extent that the principal family home is reasonably necessary
for the applicant, his spouse and the persons with whom he habitually
resides;

(b) the equity in furnishings contained in
the principal family home and owned by the applicant, his spouse
or the persons with whom he habitually resides, to the extent
that those furnishings are reasonably necessary for the applicant,
his spouse and the persons with whom he habitually resides;

(c) the equity in the principal family vehicle
to the extent that the principal family vehicle is reasonably
necessary for the applicant, his spouse and persons with whom
he habitually resides;

(d) the equity in assets owned by the applicant,
his spouse and persons with whom he habitually resides that
are not readily disposable;

(e) the equity in assets owned by the applicant’s
spouse that do not constitute marital property, including those
assets listed in Section 5. The Registry determines whether
assets constitute marital property according to the marital
property regime of the state in which the applicant and his
spouse were wed or reside unless proof is offered to the contrary;

(f) the equity in tools of the trade owned
by the applicant, his spouse and persons with whom he habitually
resides that are reasonably necessary to the livelihood of the
applicant, his spouse, his dependents or the persons with whom
he habitually resides.

7
Income included in disposable means

In determining the applicant’s disposable means
the Registry considers that the applicant, his spouse and the
persons with whom he habitually resides will continue to receive
their personal income from when the Registry issues its decision
on the extent to which an applicant is able to remunerate counsel
until the conclusion of the estimated period in which the applicant
will require representation before the International Tribunal
at the pre-trial, trial or appeals stage.

In determining the applicant’s disposable means,
the Registry includes the following income of the applicant,
his spouse and the persons with whom he habitually resides:

(a) salaries, wages and commissions;

(b) business income after deducting reasonable
expenses;

(c) investment income;

(d) government pensions;

(e) government allowances other than welfare
payments;

(f) workers’ compensation payments;

(g) alimony, separation and maintenance payments
owed to the applicant;

(h) regular payments received under any annuity,
pension or insurance scheme;

(i) regular payments received from a mortgage,
agreement of sale or loan agreement;

(j) any other regular income that is not excluded
in Section 8.

8
Income excluded from disposable means

In determining the applicant’s disposable means
the Registry does not include the following income of the applicant,
his spouse and the persons with whom he habitually resides:

(a) government welfare payments;

(b) earnings of the applicant’s child or children;

(c) alimony, separation or maintenance payments
owed to the applicant’s spouse, his dependents or persons with
whom he habitually resides.

9
Formula for calculating the extent to which the equity in the
applicant’s principal family home exceeds the needs of the applicant,
his spouse and the persons with whom he habitually resides

Given the official data available from the
governments within the republics of the former Yugoslavia, the
following formula is used to determine the extent to which the
applicant’s principal family home exceeds the needs of the applicant,
his spouse and the persons with whom he habitually resides:

( V

x LSE) – EN = E

LS

Where-

V represents the valuation of the principal
family home obtained by the Registry;

LS represents the living space in square
meters in the principal family home;

EN represents any encumbrances registered
against the principal family home;

E represents the equity in the principal
family home that exceeds the reasonable needs of the applicant,
his spouse and the persons with whom he habitually resides.
If this amount if greater than zero, it is included in the applicant’s
disposable means in accordance with Section 5(a);

LSE represents the living space in the
principal family home that exceeds the average living space
for the number of persons who habitually reside in the principal
family home in the state in which it is located, according to
official documentation of the governments of the republics of
the former Yugoslavia. The following formula is used to calculate
LSE:

LS – (ALS x M) = LSE

Where-

ALS represents the average number of
square meters of living space per person in the state in which
the principal family home is located, obtained from official
documentation of the governments of the republics of the former
Yugoslavia;

M represents the number of persons who
habitually reside in the principal family home, including the
applicant, the applicant’s spouse and the persons with whom
he habitually resides.

10
Formula for calculating the estimated living expenses

The following formula is used to calculate
the estimated living expenses of the applicant, his spouse,
his dependents and the persons with whom he habitually resides:

[AE

x (M+ D) + EE] x T = ELE

4

Where-

AE represents the average monthly expenditure
for a four-person household, obtained from official documentation
of the governments of the republics of the former Yugoslavia.
The index includes accommodation and living costs;

EE represents additional monthly living
expenses of the applicant, his spouse, his dependents and the
persons with whom he habitually resides. These additional living
expenses are expenses that are particular to the applicant,
his spouse, his dependents and the persons with whom he habitually
resides and are accordingly not foreseen in the AE index. Additional
living expenses will include but not be limited to tuition fees
and the costs of extraordinary medical care.

M represents the number of people who
habitually reside in the principal family home, including the
applicant, the applicant’s spouse and the persons with whom
he habitually resides;

D represents the applicant’s dependents
who do not habitually reside in the principal family home;

T represents the period from when the
Registry issues its decision on the extent to which an applicant
is able to remunerate counsel until the conclusion of the estimated
period in which the applicant will require representation before
the International Tribunal at the pre-trial, trial or appeals
stage;

ELE represents the estimated living
expenses for the applicant, his spouse, his dependents and the
persons with whom he habitually resides, during the period from
when the Registry issues its decision on the extent to which
an applicant is able to remunerate counsel until the conclusion
of the estimated period in which the applicant will require
representation before the International Tribunal at the pre-trial,
trial or appeals stage.

11
Formula for calculating the extent to which an applicant is
able to remunerate counsel

The following formula is used to calculate the extent to which
an applicant is able to remunerate counsel: